ExxonMobil lawsuit (re Aceh)

In 2001, eleven Indonesian villagers filed suit against ExxonMobil in US federal court alleging that the company was complicit in human rights abuses committed by Indonesian security forces in the province of Aceh. The plaintiffs maintain that ExxonMobil hired the security forces, who were members of the Indonesian military, to protect the natural gas extraction facility and pipeline which ExxonMobil was operating. The plaintiffs further claim that ExxonMobil knew or should have known about the Indonesian military’s human rights violations against the people of Aceh. The plaintiffs allege that they suffered human rights violations, such as murder, torture and rape, at the hands of these security forces.

On October 14, 2005, a US federal judge ruled that the plaintiffs’ case may proceed on District of Columbia (DC) state law claims (which include wrongful death, theft by coercion and assault and battery), but he dismissed the plaintiffs’ federal claims under the Alien Tort Claims Act and the Torture Victim Protection Act. On March 2, 2006, a US federal judge denied a motion to dismiss filed by ExxonMobil, and ordered the parties to proceed toward discovery in this case. In January of 2007, the US Court of Appeals for the DC Circuit denied ExxonMobil's appeal of the lower court's denial of its motion to dismiss. Additionally, the court of appeals denied ExxonMobil's petition for a writ of mandamus to compel the lower court to dismiss the claims against the company. In July of 2007, ExxonMobil appealed to the US Supreme Court (petitioned for a writ of certiorari). On 13 November 2007, the US Supreme Court invited the US Solicitor General to file a brief expressing the views of the executive branch on this petition. On 16 June 2008, the US Supreme declined to hear this case. On 27 August 2008, the US District Court for the District of Columbia ruled on a motion for summary judgment filed by ExxonMobil; the judge declined to grant the defendants’ motion. The judge found that the plaintiffs had presented sufficient preliminary evidence to support their allegations of abuse and therefore the case should be submitted to a jury for trial. On 30 September 2009, the US District Court ruled on another motion to dismiss from the defendants. The judge granted ExxonMobil's motion to dismiss the case finding that the plaintiffs did not have standing to bring the case in a US court. On 8 July 2011, the Court of Appeals reversed the district court's dismissal of the case, finding that a corporation should not be immune from liability under the Alien Tort Claims Act. The court remanded the lawsuit to the lower court. ExxonMobil filed a motion with the Court of Appeals on 8 August 2011 asking the court to rehear the case en banc. In September 2014, a US federal court held that Indonesian villagers from the Aceh province can proceed with their claims against ExxonMobil. In a decision issued in July 2015, a US federal court ruled that the plaintiffs' claims sufficiently "touch and concern" the United States and may proceed in US court.

"The Global Lawyer: The 'Zombie' Alien Tort, Three Years After Kiobel", 12 May 2016

When the U.S. Supreme Court restricted the reach of the Alien Tort Statute in Kiobel v. Royal Dutch Shell, I wrote that it had created a "zombie doctrine,” leaving the corporate alien tort not quite alive and not quite dead. Three years later, the zombie is looking rather spry. On Thursday the U.S. Court of the Appeals for the Fourth Circuit heard oral argument in an alien tort case accusing a military contractor of torturing detainees at Abu Ghraib prison. The case…was dismissed…on political question grounds after the Fourth Circuit had refused to dismiss it under Kiobel. Two weeks ago…, a different judge declined to dismiss the case against the psychologists who designed the "black site" interrogation program on either Kiobel or political question grounds…The Supreme Court has passed on the chance to revisit Kiobel at least twice…Most alien tort cases will continue to be blocked by defenses like justiciability or forum non conveniens…Prudent plaintiffs lawyers will develop strategies under state law, or under acts designed to combat terror, torture, or human trafficking. I stand by my point that the Alien Tort Statute requires sympathetic interpretation.

"The Impact of enhanced corporate transparency on access to remedy for victims of corporate human rights abuses: Some reflections on the decision of the US Court in the Exxon Mobil case", 27 aug 2015

…Obstacles to accessing remedies for such cross-border claims were analysed in depth in a 2013 Report…and evidentiary burden are listed among the most significant barriers to the success of these claims…The separate personality, combined with the allocation of the burden of proof on the claimant to show the direct involvement of the parent, and the difficulties in obtaining such evidence…makes it a miracle for claimants to even overcome the jurisdictional hurdles of such a claim…As a result, a recent US court ruling allowing a case of human rights abuses filed against ExxonMobil by Indonesian citizens to proceed under the Alien Tort Statute (‘ATS’) is being hailed as a victory for the enforcement of human rights law…Had the claimants not had access to internal company documents during discovery, they would not have the information that helped them show domestic conduct sought by the court…Reporting on human rights due diligence would allow claimants to acquire knowledge about what the company does or fails to do about identifying, preventing, mitigating and remedying adverse human rights impact. Closing the information gap between the company and the victim would certainly allow the claimant carrying the burden of proof to present a stronger case. [Also refers to Ericsson, Nestlé, Unilver]

Earlier this month, the District Court for the District of Columbia denied Exxon Mobil’s motion to dismiss plaintiffs’ claims in Doe I v. Exxon Mobil, a case brought pursuant to the Alien Tort Statute (“ATS”). Plaintiffs allege that Exxon Mobil should be held liable for aiding and abetting human rights abuses committed by members of the Indonesian military. The abuses were allegedly committed while the military was providing security for the company’s operations in the Aceh Province of Indonesia in 2000 and 2001...Noting that the “primary inquiry in deciding whether the presumption against extraterritoriality is displaced is the location of the conduct at issue,” the Court found that plaintiffs had made “numerous and detailed allegations” that Exxon Mobil executives based in the United States had made decisions regarding the deployment of military security personnel in Indonesia.

In a ruling that may shape how US courts are used for international corporate accountability, a judge in Washington this month allowed a group of Indonesian villagers to persist in their claims of human rights abuses against the Texas oil giant Exxon Mobil Corp. The 15-year-old claims may proceed, the judge found, because the villagers from Aceh province have newly alleged that top figures at the oil company — historically one of the most profitable companies in the world — knowingly hired and supported local military forces who tortured, killed and sexually assaulted the villagers, who have all withheld their names out of fear for their safety. The company strongly denied the allegations.

In a significant victory for families of Indonesian citizens who were killed or abused by security personnel hired by Exxon Mobil Corporation, a Federal court has ruled the Alien Tort Statute claims against Exxon Mobil for human rights violations can proceed…In an opinion issued on July 6, Judge Royce C. Lamberth, of the U.S. District Court, District of Columbia, held that the plaintiffs' claims sufficiently "touch and concern" the United States to satisfy the test recently set out by the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum for when suits arising out of injuries inflicted overseas can be heard in U.S. courts.ExxonMobil Indonesian Villagers Human Rights Abuse Case to Proceed in Federal Court

‘Closing the courtroom door: where can victims of human rights abuse by business find justice?’, 1 Dec 2014

…[M]any victims of business-related human rights abuse have no access to judicial remedy in their home country…The majority of cases of abuse we see at Business & Human Rights Resource Centre occur in weak governance zones, which often do not have an independent judiciary, and sometimes lack fully functioning courts…Of the 108 legal cases the Centre has profiled,…[54%] are related to extraterritorial claims…[but t]he effect [of Kiobel] has been a near-freeze on victims seeking justice through this…avenue. At the time of…Kiobel…, there were at least 19 corporate Alien Tort cases pending in US courts. Since then, only one new…case has been filed…While the scope for remedy from US and English courts is narrowing…there have been three cases filed in Canadian courts addressing extraterritorial business-related human rights abuse...[and]…cases…have been filed in France, Switzerland and Germany…Concerted action is needed by governments and others to reverse the trend toward closing…avenues to justice…[Also refers to Occidental Petroleum, Cisco Systems, Drummond, Chiquita, Rio Tinto, Daimler, ExxonMobil, Nestle, CACI, L-3 Titan, Nevsun, Hudbay Minerals and Tahoe Resources]

In a significant victory for families of Indonesian citizens who were killed or abused by security personnel hired by ExxonMobil Corporation, a federal court has ruled that two closely related lawsuits against ExxonMobil for human rights violations can proceed…The Plaintiffs in the cases, which were filed in the U.S. District Court District of Columbia, allege that Indonesian soldiers hired by ExxonMobil to provide security at the corporation’s natural gas facility physically abused and killed family members who lived or worked in villages within the sprawling operations in rural Aceh, Indonesia. “This is a huge victory for the plaintiffs,” said Plaintiffs’ co-lead counsel Agnieszka Fryszman, a partner at Cohen Milstein Sellers & Toll. “We are especially pleased that the Court agreed with us that the Plaintiffs had sufficiently tied Exxon’s conduct to the injuries and abuses that were inflicted on these villagers. We look forward to seeing justice done…”…

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